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A/HRC/17/31
Advance Edited Version Distr.: General
21 March 2011
Original: English
Human Rights Council
Seventeenth session
Agenda item 3
Promotion and protection of all human rights,
civil, political, economic, social and cultural rights,
including the right to development
Report of the Special Representative of the Secretary-
General on the issue of human rights and transnational
corporations and other business enterprises, John Ruggie
Guiding Principles on Business and Human Rights: Implementing the
United Nations “Protect, Respect and Remedy” Framework
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Summary
This is the final report of the Special Representative. It summarizes his work from
2005 to 2011, and presents the “Guiding Principles on Business and Human Rights:
Implementing the United Nations ‘Protect, Respect and Remedy’ Framework” for
consideration by the Human Rights Council.
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Contents
Paragraphs Page
Introduction to the Guiding Principles .................................................................... 1–16 1
Annex
Guiding Principles on Business and Human Rights: Implementing the United Nations
“Protect, Respect and Remedy” Framework .................................................................................... 6
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Introduction to the Guiding Principles
1. The issue of business and human rights became permanently implanted on the global
policy agenda in the 1990s, reflecting the dramatic worldwide expansion of the private
sector at the time, coupled with a corresponding rise in transnational economic activity.
These developments heightened social awareness of businesses’ impact on human rights
and also attracted the attention of the United Nations.
2. One early United Nations-based initiative was called the Norms on Transnational
Corporations and Other Business Enterprises; it was drafted by an expert subsidiary body of
what was then the Commission on Human Rights. Essentially, this sought to impose on
companies, directly under international law, the same range of human rights duties that
States have accepted for themselves under treaties they have ratified: “to promote, secure
the fulfilment of, respect, ensure respect of and protect human rights”.
3. This proposal triggered a deeply divisive debate between the business community
and human rights advocacy groups while evoking little support from Governments. The
Commission declined to act on the proposal. Instead, in 2005 it established a mandate for a
Special Representative of the Secretary-General “on the issue of human rights and
transnational corporations and other business enterprises” to undertake a new process, and
requested the Secretary-General to appoint the mandate holder. This is the final report of
the Special Representative.
4. The work of the Special Representative has evolved in three phases. Reflecting the
mandate’s origins in controversy, its initial duration was only two years and it was intended
mainly to “identify and clarify” existing standards and practices. This defined the first
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phase. In 2005, there was little that counted as shared knowledge across different
stakeholder groups in the business and human rights domain. Thus the Special
Representative began an extensive programme of systematic research that has continued to
the present. Several thousand pages of documentation are available on his web portal
(http://www.business-humanrights.org/SpecialRepPortal/Home): mapping patterns of
alleged human rights abuses by business enterprises; evolving standards of international
human rights law and international criminal law; emerging practices by States and
companies; commentaries of United Nations treaty bodies on State obligations concerning
business-related human rights abuses; the impact of investment agreements and corporate
law and securities regulation on both States’ and enterprises’ human rights policies; and
related subjects. This research has been actively disseminated, including to the Council
itself. It has provided a broader and more solid factual basis for the ongoing business and
human rights discourse, and is reflected in the Guiding Principles annexed to this report.
5. In 2007, the Council renewed the mandate of the Special Representative for an
additional year, inviting him to submit recommendations. This marked the mandate’s
second phase. The Special Representative observed that there were many initiatives, public
and private, which touched on business and human rights. But none had reached sufficient
scale to truly move markets; they existed as separate fragments that did not add up to a
coherent or complementary system. One major reason has been the lack of an authoritative
focal point around which the expectations and actions of relevant stakeholders could
converge. Therefore, in June 2008 the Special Representative made only one
recommendation: that the Council support the “Protect, Respect and Remedy” Framework
he had developed following three years of research and consultations. The Council did so,
unanimously “welcoming” the Framework in its resolution 8/7 and providing, thereby, the
authoritative focal point that had been missing.
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6. The Framework rests on three pillars. The first is the State duty to protect against
human rights abuses by third parties, including business enterprises, through appropriate
policies, regulation, and adjudication. The second is the corporate responsibility to respect
human rights, which means that business enterprises should act with due diligence to avoid
infringing on the rights of others and to address adverse impacts with which they are
involved. The third is the need for greater access by victims to effective remedy, both
judicial and non-judicial. Each pillar is an essential component in an inter-related and
dynamic system of preventative and remedial measures: the State duty to protect because it
lies at the very core of the international human rights regime; the corporate responsibility to
respect because it is the basic expectation society has of business in relation to human
rights; and access to remedy because even the most concerted efforts cannot prevent all
abuse.
7. Beyond the Human Rights Council, the Framework has been endorsed or employed
by individual Governments, business enterprises and associations, civil society and
workers’ organizations, national human rights institutions, and investors. It has been drawn
upon by such multilateral institutions as the International Organization for Standardization
and the Organization for Economic Cooperation and Development in developing their own
initiatives in the business and human rights domain. Other United Nations special
procedures have invoked it extensively.
8. Apart from the Framework’s intrinsic utility, the large number and inclusive
character of stakeholder consultations convened by and for the mandate no doubt have
contributed to its widespread positive reception. Indeed, by January 2011 the mandate had
held 47 international consultations, on all continents, and the Special Representative and his
team had made site visits to business operations and their local stakeholders in more than
20 countries.
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9. In its resolution 8/7, welcoming the “Protect, Respect and Remedy” Framework, the
Council also extended the Special Representative’s mandate until June 2011, asking him to
“operationalize” the Framework – at is, to provide concrete and practical recommendations
for its implementation. This constitutes the mandate’s third phase. During the interactive
dialogue at the Council’s June 2010 session, delegations agreed that the recommendations
should take the form of “Guiding Principles”; these are annexed to this report.
10. The Council asked the Special Representative, in developing the Guiding Principles,
to proceed in the same research-based and consultative manner that had characterized his
mandate all along. Thus, the Guiding Principles are informed by extensive discussions with
all stakeholder groups, including Governments, business enterprises and associations,
individuals and communities directly affected by the activities of enterprises in various
parts of the world, civil society, and experts in the many areas of law and policy that the
Guiding Principles touch upon.
11. Some of the Guiding Principles have been road-tested as well. For example, those
elaborating effectiveness criteria for non-judicial grievance mechanisms involving business
enterprises and communities in which they operate were piloted in five different sectors,
each in a different country. The workability of the Guiding Principles’ human rights due-
diligence provisions was tested internally by 10 companies, and was the subject of detailed
discussions with corporate law professionals from more than 20 countries with expertise in
over 40 jurisdictions. The Guiding Principles addressing how Governments should help
companies avoid getting drawn into the kinds of human rights abuses that all too often
occur in conflict-affected areas emerged from off-the-record, scenario-based workshops
with officials from a cross-section of States that had practical experience in dealing with
these challenges. In short, the Guiding Principles aim not only to provide guidance that is
practical, but also guidance informed by actual practice.
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12. Moreover, the text of the Guiding Principles itself has been subject to extensive
consultations. In October 2010, an annotated outline was discussed in separate day-long
sessions with Human Rights Council delegations, business enterprises and associations, and
civil society groups. The same document was also presented at the annual meeting of the
International Coordinating Committee of National Human Rights Institutions. Taking into
account the diverse views expressed, the Special Representative then produced a full draft
of the Guiding Principles and Commentary, which was sent to all Member States on 22
November 2010 and posted online for public comment until 31 January 2011. The online
consultation attracted 3,576 unique visitors from 120 countries and territories. Some 100
written submissions were sent directly to the Special Representative, including by
Governments. In addition, the draft Guiding Principles were discussed at an expert multi-
stakeholder meeting, and then at a session with Council delegations, both held in January
2011. The final text now before the Council is the product of this extensive and inclusive
process.
13. What do these Guiding Principles do? And how should they be read? Council
endorsement of the Guiding Principles, by itself, will not bring business and human rights
challenges to an end. But it will mark the end of the beginning: by establishing a common
global platform for action, on which cumulative progress can be built, step-by-step, without
foreclosing any other promising longer-term developments.
14. The Guiding Principles’ normative contribution lies not in the creation of new
international law obligations but in elaborating the implications of existing standards and
practices for States and businesses; integrating them within a single, logically coherent and
comprehensive template; and identifying where the current regime falls short and how it
should be improved. Each Principle is accompanied by a commentary, further clarifying its
meaning and implications.
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15. At the same time, the Guiding Principles are not intended as a tool kit, simply to be
taken off the shelf and plugged in. While the Principles themselves are universally
applicable, the means by which they are realized will reflect the fact that we live in a world
of 192 United Nations Member States, 80,000 transnational enterprises, 10 times as many
subsidiaries and countless millions of national firms, most of which are small and medium-
sized enterprises. When it comes to means for implementation, therefore, one size does not
fit all.
16. The Special Representative is honored to submit these Guiding Principles to the
Human Rights Council. In doing so, he wishes to acknowledge the extraordinary
contributions by hundreds of individuals, groups and institutions around the world,
representing different segments of society and sectors of industry, who gave freely of their
time, openly shared their experiences, debated options vigorously, and who came to
constitute a global movement of sorts in support of a successful mandate: establishing
universally applicable and yet practical Guiding Principles on the effective prevention of,
and remedy for, business-related human rights harm.
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Annex
Guiding Principles on Business and Human Rights:
Implementing the United Nations “Protect, Respect and
Remedy” Framework
General principles
These Guiding Principles are grounded in recognition of:
(a) States’ existing obligations to respect, protect and fulfil human rights and
fundamental freedoms;
(b) The role of business enterprises as specialized organs of society performing
specialized functions, required to comply with all applicable laws and to respect human
rights;
(c) The need for rights and obligations to be matched to appropriate and effective
remedies when breached.
These Guiding Principles apply to all States and to all business enterprises, both
transnational and others, regardless of their size, sector, location, ownership and structure.
These Guiding Principles should be understood as a coherent whole and should be read,
individually and collectively, in terms of their objective of enhancing standards and
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practices with regard to business and human rights so as to achieve tangible results for
affected individuals and communities, and thereby also contributing to a socially
sustainable globalization.
Nothing in these Guiding Principles should be read as creating new international law
obligations, or as limiting or undermining any legal obligations a State may have
undertaken or be subject to under international law with regard to human rights.
These Guiding Principles should be implemented in a non-discriminatory manner, with
particular attention to the rights and needs of, as well as the challenges faced by, individuals
from groups or populations that may be at heightened risk of becoming vulnerable or
marginalized, and with due regard to the different risks that may be faced by women and
men.
I. The State duty to protect human rights
A. Foundational principles
1. States must protect against human rights abuse within their territory and/or
jurisdiction by third parties, including business enterprises. This requires taking
appropriate steps to prevent, investigate, punish and redress such abuse through
effective policies, legislation, regulations and adjudication.
Commentary
States’ international human rights law obligations require that they respect, protect and
fulfil the human rights of individuals within their territory and/or jurisdiction. This includes
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the duty to protect against human rights abuse by third parties, including business
enterprises.
The State duty to protect is a standard of conduct. Therefore, States are not per se
responsible for human rights abuse by private actors. However, States may breach their
international human rights law obligations where such abuse can be attributed to them, or
where they fail to take appropriate steps to prevent, investigate, punish and redress private
actors’ abuse. While States generally have discretion in deciding upon these steps, they
should consider the full range of permissible preventative and remedial measures, including
policies, legislation, regulations and adjudication. States also have the duty to protect and
promote the rule of law, including by taking measures to ensure equality before the law,
fairness in its application, and by providing for adequate accountability, legal certainty, and
procedural and legal transparency.
This chapter focuses on preventative measures while Chapter III outlines remedial
measures.
2. States should set out clearly the expectation that all business enterprises domiciled in
their territory and/or jurisdiction respect human rights throughout their operations.
Commentary
At present States are not generally required under international human rights law to regulate
the extraterritorial activities of businesses domiciled in their territory and/or jurisdiction.
Nor are they generally prohibited from doing so, provided there is a recognized
jurisdictional basis. Within these parameters some human rights treaty bodies recommend
that home States take steps to prevent abuse abroad by business enterprises within their
jurisdiction.
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There are strong policy reasons for home States to set out clearly the expectation that
businesses respect human rights abroad, especially where the State itself is involved in or
supports those businesses. The reasons include ensuring predictability for business
enterprises by providing coherent and consistent messages, and preserving the State’s own
reputation.
States have adopted a range of approaches in this regard. Some are domestic measures with
extraterritorial implications. Examples include requirements on “parent” companies to
report on the global operations of the entire enterprise; multilateral soft-law instruments
such as the Guidelines for Multinational Enterprises of the Organization for Economic
Cooperation and Development; and performance standards required by institutions that
support overseas investments. Other approaches amount to direct extraterritorial legislation
and enforcement. This includes criminal regimes that allow for prosecutions based on the
nationality of the perpetrator no matter where the offence occurs. Various factors may
contribute to the perceived and actual reasonableness of States’ actions, for example
whether they are grounded in multilateral agreement.
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B. Operational principles
General State regulatory and policy functions
3. In meeting their duty to protect, States should:
(a) Enforce laws that are aimed at, or have the effect of, requiring business
enterprises to respect human rights, and periodically to assess the adequacy of such
laws and address any gaps;
(b) Ensure that other laws and policies governing the creation and ongoing
operation of business enterprises, such as corporate law, do not constrain but enable
business respect for human rights;
(c) Provide effective guidance to business enterprises on how to respect
human rights throughout their operations;
(d) Encourage, and where appropriate require, business enterprises to
communicate how they address their human rights impacts.
Commentary
States should not assume that businesses invariably prefer, or benefit from, State inaction,
and they should consider a smart mix of measures – national and international, mandatory
and voluntary – to foster business respect for human rights.
The failure to enforce existing laws that directly or indirectly regulate business respect for
human rights is often a significant legal gap in State practice. Such laws might range from
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non-discrimination and labour laws to environmental, property, privacy and anti-bribery
laws. Therefore, it is important for States to consider whether such laws are currently being
enforced effectively, and if not, why this is the case and what measures may reasonably
correct the situation.
It is equally important for States to review whether these laws provide the necessary
coverage in light of evolving circumstances and whether, together with relevant policies,
they provide an environment conducive to business respect for human rights. For example,
greater clarity in some areas of law and policy, such as those governing access to land,
including entitlements in relation to ownership or use of land, is often necessary to protect
both rights-holders and business enterprises.
Laws and policies that govern the creation and ongoing operation of business enterprises,
such as corporate and securities laws, directly shape business behaviour. Yet their
implications for human rights remain poorly understood. For example, there is a lack of
clarity in corporate and securities law regarding what companies and their officers are
permitted, let alone required, to do regarding human rights. Laws and policies in this area
should provide sufficient guidance to enable enterprises to respect human rights, with due
regard to the role of existing governance structures such as corporate boards.
Guidance to business enterprises on respecting human rights should indicate expected
outcomes and help share best practices. It should advise on appropriate methods, including
human rights due diligence, and how to consider effectively issues of gender, vulnerability
and/or marginalization, recognizing the specific challenges that may be faced by indigenous
peoples, women, national or ethnic minorities, religious and linguistic minorities,
children, persons with disabilities, and migrant workers and their families.
National human rights institutions that comply with the Paris Principles have an important
role to play in helping States identify whether relevant laws are aligned with their human
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rights obligations and are being effectively enforced, and in providing guidance on human
rights also to business enterprises and other non-State actors.
Communication by business enterprises on how they address their human rights impacts
can range from informal engagement with affected stakeholders to formal public reporting.
State encouragement of, or where appropriate requirements for, such communication are
important in fostering respect for human rights by business enterprises. Incentives to
communicate adequate information could include provisions to give weight to such self-
reporting in the event of any judicial or administrative proceeding. A requirement to
communicate can be particularly appropriate where the nature of business operations or
operating contexts pose a significant risk to human rights. Policies or laws in this area can
usefully clarify what and how businesses should communicate, helping to ensure both the
accessibility and accuracy of communications.
Any stipulation of what would constitute adequate communication should take into account
risks that it may pose to the safety and security of individuals and facilities; legitimate
requirements of commercial confidentiality; and variations in companies’ size and
structures.
Financial reporting requirements should clarify that human rights impacts in some instances
may be “material” or “significant” to the economic performance of the business enterprise.
The State-business nexus
4. States should take additional steps to protect against human rights abuses by business
enterprises that are owned or controlled by the State, or that receive substantial
support and services from State agencies such as export credit agencies and official
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investment insurance or guarantee agencies, including, where appropriate, by
requiring human rights due diligence.
Commentary
States individually are the primary duty-bearers under international human rights law, and
collectively they are the trustees of the international human rights regime. Where a business
enterprise is controlled by the State or where its acts can be attributed otherwise to the
State, an abuse of human rights by the business enterprise may entail a violation of the
State’s own international law obligations. Moreover, the closer a business enterprise is to
the State, or the more it relies on statutory authority or taxpayer support, the stronger the
State’s policy rationale becomes for ensuring that the enterprise respects human rights.
Where States own or control business enterprises, they have greatest means within their
powers to ensure that relevant policies, legislation and regulations regarding respect for
human rights are implemented. Senior management typically reports to State agencies, and
associated government departments have greater scope for scrutiny and oversight, including
ensuring that effective human rights due diligence is implemented. (These enterprises are
also subject to the corporate responsibility to respect human rights, addressed in Chapter
II.)
A range of agencies linked formally or informally to the State may provide support and
services to business activities. These include export credit agencies, official investment
insurance or guarantee agencies, development agencies and development finance
institutions. Where these agencies do not explicitly consider the actual and potential
adverse impacts on human rights of beneficiary enterprises, they put themselves at risk – in
reputational, financial, political and potentially legal terms – for supporting any such harm,
and they may add to the human rights challenges faced by the recipient State.
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Given these risks, States should encourage and, where appropriate, require human rights
due diligence by the agencies themselves and by those business enterprises or projects
receiving their support. A requirement for human rights due diligence is most likely to be
appropriate where the nature of business operations or operating contexts pose significant
risk to human rights.
5. States should exercise adequate oversight in order to meet their international human
rights obligations when they contract with, or legislate for, business enterprises to
provide services that may impact upon the enjoyment of human rights.
Commentary
States do not relinquish their international human rights law obligations when they privatize
the delivery of services that may impact upon the enjoyment of human rights. Failure by
States to ensure that business enterprises performing such services operate in a manner
consistent with the State’s human rights obligations may entail both reputational and legal
consequences for the State itself. As a necessary step, the relevant service contracts or
enabling legislation should clarify the State’s expectations that these enterprises respect
human rights. States should ensure that they can effectively oversee the enterprises’
activities, including through the provision of adequate independent monitoring and
accountability mechanisms.
6. States should promote respect for human rights by business enterprises with which
they conduct commercial transactions.
Commentary
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States conduct a variety of commercial transactions with business enterprises, not least
through their procurement activities. This provides States – individually and collectively –
with unique opportunities to promote awareness of and respect for human rights by those
enterprises, including through the terms of contracts, with due regard to States’ relevant
obligations under national and international law.
Supporting business respect for human rights in conflict-affected areas
7. Because the risk of gross human rights abuses is heightened in conflict-affected areas,
States should help ensure that business enterprises operating in those contexts are not
involved with such abuses, including by:
(a) Engaging at the earliest stage possible with business enterprises to help
them identify, prevent and mitigate the human rights-related risks of their activities
and business relationships;
(b) Providing adequate assistance to business enterprises to assess and
address the heightened risks of abuses, paying special attention to both gender-based
and sexual violence;
(c) Denying access to public support and services for a business enterprise
that is involved with gross human rights abuses and refuses to cooperate in addressing
the situation;
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(d) Ensuring that their current policies, legislation, regulations and
enforcement measures are effective in addressing the risk of business involvement in
gross human rights abuses.
Commentary
Some of the worst human rights abuses involving business occur amid conflict over the
control of territory, resources or a Government itself – where the human rights regime
cannot be expected to function as intended. Responsible businesses increasingly seek
guidance from States about how to avoid contributing to human rights harm in these
difficult contexts. Innovative and practical approaches are needed. In particular, it is
important to pay attention to the risk of sexual and gender-based violence, which is
especially prevalent during times of conflict.
It is important for all States to address issues early before situations on the ground
deteriorate. In conflict-affected areas, the “host” State may be unable to protect human
rights adequately due to a lack of effective control. Where transnational corporations are
involved, their “home” States therefore have roles to play in assisting both those
corporations and host States to ensure that businesses are not involved with human rights
abuse, while neighboring States can provide important additional support.
To achieve greater policy coherence and assist business enterprises adequately in such
situations, home States should foster closer cooperation among their development
assistance agencies, foreign and trade ministries, and export finance institutions in their
capitals and within their embassies, as well as between these agencies and host Government
actors; develop early-warning indicators to alert Government agencies and business
enterprises to problems; and attach appropriate consequences to any failure by enterprises
to cooperate in these contexts, including by denying or withdrawing existing public support
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or services, or where that is not possible, denying their future provision.
States should warn business enterprises of the heightened risk of being involved with gross
abuses of human rights in conflict-affected areas. They should review whether their
policies, legislation, regulations and enforcement measures effectively address this
heightened risk, including through provisions for human rights due diligence by business.
Where they identify gaps, States should take appropriate steps to address them. This may
include exploring civil, administrative or criminal liability for enterprises domiciled or
operating in their territory and/or jurisdiction that commit or contribute to gross human
rights abuses. Moreover, States should consider multilateral approaches to prevent and
address such acts, as well as support effective collective initiatives.
All these measures are in addition to States’ obligations under international humanitarian
law in situations of armed conflict, and under international criminal law.
Ensuring policy coherence
8. States should ensure that governmental departments, agencies and other State-based
institutions that shape business practices are aware of and observe the State’s human
rights obligations when fulfilling their respective mandates, including by providing
them with relevant information, training and support.
Commentary
There is no inevitable tension between States’ human rights obligations and the laws and
policies they put in place that shape business practices. However, at times, States have to
make difficult balancing decisions to reconcile different societal needs. To achieve the
appropriate balance, States need to take a broad approach to managing the business and
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human rights agenda, aimed at ensuring both vertical and horizontal domestic policy
coherence.
Vertical policy coherence entails States having the necessary policies, laws and processes to
implement their international human rights law obligations. Horizontal policy coherence
means supporting and equipping departments and agencies, at both the national and sub-
national levels, that shape business practices – including those responsible for corporate
law and securities regulation, investment, export credit and insurance, trade and labour –
to be informed of and act in a manner compatible with the Governments’ human rights
obligations.
9. States should maintain adequate domestic policy space to meet their human rights
obligations when pursuing business-related policy objectives with other States or
business enterprises, for instance through investment treaties or contracts.
Commentary
Economic agreements concluded by States, either with other States or with business
enterprises – such as bilateral investment treaties, free-trade agreements or contracts for
investment projects – create economic opportunities for States. But they can also affect the
domestic policy space of governments. For example, the terms of international investment
agreements may constrain States from fully implementing new human rights legislation, or
put them at risk of binding international arbitration if they do so. Therefore, States should
ensure that they retain adequate policy and regulatory ability to protect human rights under
the terms of such agreements, while providing the necessary investor protection.
10. States, when acting as members of multilateral institutions that deal with business-
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related issues, should:
(a) Seek to ensure that those institutions neither restrain the ability of their
member States to meet their duty to protect nor hinder business enterprises from
respecting human rights;
(b) Encourage those institutions, within their respective mandates and
capacities, to promote business respect for human rights and, where requested, to help
States meet their duty to protect against human rights abuse by business enterprises,
including through technical assistance, capacity-building and awareness-raising;
(c) Draw on these Guiding Principles to promote shared understanding and
advance international cooperation in the management of business and human rights
challenges.
Commentary
Greater policy coherence is also needed at the international level, including where States
participate in multilateral institutions that deal with business-related issues, such as
international trade and financial institutions. States retain their international human rights
law obligations when they participate in such institutions.
Capacity-building and awareness-raising through such institutions can play a vital role in
helping all States to fulfil their duty to protect, including by enabling the sharing of
information about challenges and best practices, thus promoting more consistent
approaches.
Collective action through multilateral institutions can help States level the playing field
with regard to business respect for human rights, but it should do so by raising the
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performance of laggards. Cooperation between States, multilateral institutions and other
stakeholders can also play an important role.
These Guiding Principles provide a common reference point in this regard, and could serve
as a useful basis for building a cumulative positive effect that takes into account the
respective roles and responsibilities of all relevant stakeholders.
II. The corporate responsibility to respect human rights
A. Foundational principles
11. Business enterprises should respect human rights. This means that they should avoid
infringing on the human rights of others and should address adverse human rights
impacts with which they are involved.
Commentary
The responsibility to respect human rights is a global standard of expected conduct for all
business enterprises wherever they operate. It exists independently of States’ abilities
and/or willingness to fulfil their own human rights obligations, and does not diminish those
obligations. And it exists over and above compliance with national laws and regulations
protecting human rights.
Addressing adverse human rights impacts requires taking adequate measures for their
prevention, mitigation and, where appropriate, remediation.
Business enterprises may undertake other commitments or activities to support and promote
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human rights, which may contribute to the enjoyment of rights. But this does not offset a
failure to respect human rights throughout their operations.
Business enterprises should not undermine States’ abilities to meet their own human rights
obligations, including by actions that might weaken the integrity of judicial processes.
12. The responsibility of business enterprises to respect human rights refers to
internationally recognized human rights – understood, at a minimum, as those
expressed in the International Bill of Human Rights and the principles concerning
fundamental rights set out in the International Labour Organization’s Declaration on
Fundamental Principles and Rights at Work.
Commentary
Because business enterprises can have an impact on virtually the entire spectrum of
internationally recognized human rights, their responsibility to respect applies to all such
rights. In practice, some human rights may be at greater risk than others in particular
industries or contexts, and therefore will be the focus of heightened attention. However,
situations may change, so all human rights should be the subject of periodic review.
An authoritative list of the core internationally recognized human rights is contained in the
International Bill of Human Rights (consisting of the Universal Declaration of Human
Rights and the main instruments through which it has been codified: the International
Covenant on Civil and Political Rights and the International Covenant on Economic, Social
and Cultural Rights), coupled with the principles concerning fundamental rights in the eight
ILO core conventions as set out in the Declaration on Fundamental Principles and Rights at
Work. These are the benchmarks against which other social actors assess the human rights
impacts of business enterprises. The responsibility of business enterprises to respect human
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rights is distinct from issues of legal liability and enforcement, which remain defined
largely by national law provisions in relevant jurisdictions.
Depending on circumstances, business enterprises may need to consider additional
standards. For instance, enterprises should respect the human rights of individuals
belonging to specific groups or populations that require particular attention, where they
may have adverse human rights impacts on them. In this connection, United Nations
instruments have elaborated further on the rights of indigenous peoples; women; national or
ethnic, religious and linguistic minorities; children; persons with disabilities; and migrant
workers and their families. Moreover, in situations of armed conflict enterprises should
respect the standards of international humanitarian law.
13. The responsibility to respect human rights requires that business enterprises:
(a) Avoid causing or contributing to adverse human rights impacts through
their own activities, and address such impacts when they occur;
(b) Seek to prevent or mitigate adverse human rights impacts that are
directly linked to their operations, products or services by their business
relationships, even if they have not contributed to those impacts.
Commentary
Business enterprises may be involved with adverse human rights impacts either through
their own activities or as a result of their business relationships with other parties. Guiding
Principle 19 elaborates further on the implications for how business enterprises should
address these situations. For the purpose of these Guiding Principles a business enterprise’s
“activities” are understood to include both actions and omissions; and its “business
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relationships” are understood to include relationships with business partners, entities in its
value chain, and any other non-State or State entity directly linked to its business
operations, products or services.
14. The responsibility of business enterprises to respect human rights applies to all
enterprises regardless of their size, sector, operational context, ownership and
structure. Nevertheless, the scale and complexity of the means through which
enterprises meet that responsibility may vary according to these factors and with the
severity of the enterprise’s adverse human rights impacts.
Commentary
The means through which a business enterprise meets its responsibility to respect human
rights will be proportional to, among other factors, its size. Small and medium-sized
enterprises may have less capacity as well as more informal processes and management
structures than larger companies, so their respective policies and processes will take on
different forms. But some small and medium-sized enterprises can have severe human
rights impacts, which will require corresponding measures regardless of their size. Severity
of impacts will be judged by their scale, scope and irremediable character. The means
through which a business enterprise meets its responsibility to respect human rights may
also vary depending on whether, and the extent to which, it conducts business through a
corporate group or individually. However, the responsibility to respect human rights applies
fully and equally to all business enterprises.
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15. In order to meet their responsibility to respect human rights, business enterprises
should have in place policies and processes appropriate to their size and
circumstances, including:
(a) A policy commitment to meet their responsibility to respect human
rights;
(b) A human rights due-diligence process to identify, prevent, mitigate and
account for how they address their impacts on human rights;
(c) Processes to enable the remediation of any adverse human rights impacts
they cause or to which they contribute.
Commentary
Business enterprises need to know and show that they respect human rights. They cannot do
so unless they have certain policies and processes in place. Principles 16 to 24 elaborate
further on these.
B. Operational principles
Policy commitment
16. As the basis for embedding their responsibility to respect human rights, business
enterprises should express their commitment to meet this responsibility through a
statement of policy that:
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(a) Is approved at the most senior level of the business enterprise;
(b) Is informed by relevant internal and/or external expertise;
(c) Stipulates the enterprise’s human rights expectations of personnel,
business partners and other parties directly linked to its operations, products or
services;
(d) Is publicly available and communicated internally and externally to all
personnel, business partners and other relevant parties;
(e) Is reflected in operational policies and procedures necessary to embed it
throughout the business enterprise.
Commentary
The term “statement” is used generically, to describe whatever means an enterprise
employs to set out publicly its responsibilities, commitments, and expectations.
The level of expertise required to ensure that the policy statement is adequately informed
will vary according to the complexity of the business enterprise’s operations. Expertise can
be drawn from various sources, ranging from credible online or written resources to
consultation with recognized experts.
The statement of commitment should be publicly available. It should be communicated
actively to entities with which the enterprise has contractual relationships; others directly
linked to its operations, which may include State security forces; investors; and, in the case
of operations with significant human rights risks, to the potentially affected stakeholders.
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Internal communication of the statement and of related policies and procedures should
make clear what the lines and systems of accountability will be, and should be supported by
any necessary training for personnel in relevant business functions.
Just as States should work towards policy coherence, so business enterprises need to strive
for coherence between their responsibility to respect human rights and policies and
procedures that govern their wider business activities and relationships. This should
include, for example, policies and procedures that set financial and other performance
incentives for personnel; procurement practices; and lobbying activities where human rights
are at stake.
Through these and any other appropriate means, the policy statement should be embedded
from the top of the business enterprise through all its functions, which otherwise may act
without awareness or regard for human rights.
Human rights due diligence
17. In order to identify, prevent, mitigate and account for how they address their adverse
human rights impacts, business enterprises should carry out human rights due
diligence. The process should include assessing actual and potential human rights
impacts, integrating and acting upon the findings, tracking responses, and
communicating how impacts are addressed. Human rights due diligence:
(a) Should cover adverse human rights impacts that the business enterprise
may cause or contribute to through its own activities, or which may be directly linked
to its operations, products or services by its business relationships;
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(b) Will vary in complexity with the size of the business enterprise, the risk
of severe human rights impacts, and the nature and context of its operations;
(c) Should be ongoing, recognizing that the human rights risks may change
over time as the business enterprise’s operations and operating context evolve.
Commentary
This Principle defines the parameters for human rights due diligence, while Principles 18
through 21 elaborate its essential components.
Human rights risks are understood to be the business enterprise’s potential adverse human
rights impacts. Potential impacts should be addressed through prevention or mitigation,
while actual impacts – those that have already occurred – should be a subject for
remediation (Principle 22).
Human rights due diligence can be included within broader enterprise risk-management
systems, provided that it goes beyond simply identifying and managing material risks to the
company itself, to include risks to rights-holders.
Human rights due diligence should be initiated as early as possible in the development of a
new activity or relationship, given that human rights risks can be increased or mitigated
already at the stage of structuring contracts or other agreements, and may be inherited
through mergers or acquisitions.
Where business enterprises have large numbers of entities in their value chains it may be
unreasonably difficult to conduct due diligence for adverse human rights impacts across
them all. If so, business enterprises should identify general areas where the risk of adverse
human rights impacts is most significant, whether due to certain suppliers’ or clients’
operating context, the particular operations, products or services involved, or other relevant
considerations, and prioritize these for human rights due diligence.
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Questions of complicity may arise when a business enterprise contributes to, or is seen as
contributing to, adverse human rights impacts caused by other parties. Complicity has both
non-legal and legal meanings. As a non-legal matter, business enterprises may be perceived
as being “complicit” in the acts of another party where, for example, they are seen to
benefit from an abuse committed by that party.
As a legal matter, most national jurisdictions prohibit complicity in the commission of a
crime, and a number allow for criminal liability of business enterprises in such cases.
Typically, civil actions can also be based on an enterprise's alleged contribution to a
harm, although these may not be framed in human rights terms. The weight of international
criminal law jurisprudence indicates that the relevant standard for aiding and abetting is
knowingly providing practical assistance or encouragement that has a substantial effect on
the commission of a crime.
Conducting appropriate human rights due diligence should help business enterprises
address the risk of legal claims against them by showing that they took every reasonable
step to avoid involvement with an alleged human rights abuse. However, business
enterprises conducting such due diligence should not assume that, by itself, this will
automatically and fully absolve them from liability for causing or contributing to human
rights abuses.
18. In order to gauge human rights risks, business enterprises should identify and assess
any actual or potential adverse human rights impacts with which they may be
involved either through their own activities or as a result of their business
relationships. This process should:
(a) Draw on internal and/or independent external human rights expertise;
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(b) Involve meaningful consultation with potentially affected groups and
other relevant stakeholders, as appropriate to the size of the business enterprise and
the nature and context of the operation.
Commentary
The initial step in conducting human rights due diligence is to identify and assess the nature
of the actual and potential adverse human rights impacts with which a business enterprise
may be involved. The purpose is to understand the specific impacts on specific people,
given a specific context of operations. Typically this includes assessing the human rights
context prior to a proposed business activity, where possible; identifying who may be
affected; cataloguing the relevant human rights standards and issues; and projecting how
the proposed activity and associated business relationships could have adverse human rights
impacts on those identified. In this process, business enterprises should pay special
attention to any particular human rights impacts on individuals from groups or populations
that may be at heightened risk of vulnerability or marginalization, and bear in mind the
different risks that may be faced by women and men.
While processes for assessing human rights impacts can be incorporated within other
processes such as risk assessments or environmental and social impact assessments, they
should include all internationally recognized human rights as a reference point, since
enterprises may potentially impact virtually any of these rights.
Because human rights situations are dynamic, assessments of human rights impacts should
be undertaken at regular intervals: prior to a new activity or relationship; prior to major
decisions or changes in the operation (e.g. market entry, product launch, policy change, or
wider changes to the business); in response to or anticipation of changes in the operating
environment (e.g. rising social tensions); and periodically throughout the life of an activity
or relationship.
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To enable business enterprises to assess their human rights impacts accurately, they should
seek to understand the concerns of potentially affected stakeholders by consulting them
directly in a manner that takes into account language and other potential barriers to
effective engagement. In situations where such consultation is not possible, business
enterprises should consider reasonable alternatives such as consulting credible, independent
expert resources, including human rights defenders and others from civil society.
The assessment of human rights impacts informs subsequent steps in the human rights due
diligence process.
19. In order to prevent and mitigate adverse human rights impacts, business enterprises
should integrate the findings from their impact assessments across relevant internal
functions and processes, and take appropriate action.
(a) Effective integration requires that:
(i) Responsibility for addressing such impacts is assigned to the
appropriate level and function within the business enterprise;
(ii) Internal decision-making, budget allocations and oversight
processes enable effective responses to such impacts.
(b) Appropriate action will vary according to:
(i) Whether the business enterprise causes or contributes to an
adverse impact, or whether it is involved solely because the impact is
directly linked to its operations, products or services by a business
relationship;
(ii) The extent of its leverage in addressing the adverse impact.
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Commentary
The horizontal integration across the business enterprise of specific findings from assessing
human rights impacts can only be effective if its human rights policy commitment has been
embedded into all relevant business functions. This is required to ensure that the assessment
findings are properly understood, given due weight, and acted upon.
In assessing human rights impacts, business enterprises will have looked for both actual and
potential adverse impacts. Potential impacts should be prevented or mitigated through the
horizontal integration of findings across the business enterprise, while actual impacts—
those that have already occurred – should be a subject for remediation (Principle 22).
Where a business enterprise causes or may cause an adverse human rights impact, it should
take the necessary steps to cease or prevent the impact.
Where a business enterprise contributes or may contribute to an adverse human rights
impact, it should take the necessary steps to cease or prevent its contribution and use its
leverage to mitigate any remaining impact to the greatest extent possible. Leverage is
considered to exist where the enterprise has the ability to effect change in the wrongful
practices of an entity that causes a harm.
Where a business enterprise has not contributed to an adverse human rights impact, but that
impact is nevertheless directly linked to its operations, products or services by its business
relationship with another entity, the situation is more complex. Among the factors that will
enter into the determination of the appropriate action in such situations are the enterprise’s
leverage over the entity concerned, how crucial the relationship is to the enterprise, the
severity of the abuse, and whether terminating the relationship with the entity itself would
have adverse human rights consequences.
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The more complex the situation and its implications for human rights, the stronger is the
case for the enterprise to draw on independent expert advice in deciding how to respond.
If the business enterprise has leverage to prevent or mitigate the adverse impact, it should
exercise it. And if it lacks leverage there may be ways for the enterprise to increase it.
Leverage may be increased by, for example, offering capacity-building or other incentives
to the related entity, or collaborating with other actors.
There are situations in which the enterprise lacks the leverage to prevent or mitigate
adverse impacts and is unable to increase its leverage. Here, the enterprise should consider
ending the relationship, taking into account credible assessments of potential adverse
human rights impacts of doing so.
Where the relationship is “crucial” to the enterprise, ending it raises further challenges. A
relationship could be deemed as crucial if it provides a product or service that is essential to
the enterprise’s business, and for which no reasonable alternative source exists. Here the
severity of the adverse human rights impact must also be considered: the more severe the
abuse, the more quickly the enterprise will need to see change before it takes a decision on
whether it should end the relationship. In any case, for as long as the abuse continues and
the enterprise remains in the relationship, it should be able to demonstrate its own ongoing
efforts to mitigate the impact and be prepared to accept any consequences – reputational,
financial or legal – of the continuing connection.
20. In order to verify whether adverse human rights impacts are being addressed,
business enterprises should track the effectiveness of their response. Tracking should:
(a) Be based on appropriate qualitative and quantitative indicators;
(b) Draw on feedback from both internal and external sources, including
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affected stakeholders.
Commentary
Tracking is necessary in order for a business enterprise to know if its human rights policies
are being implemented optimally, whether it has responded effectively to the identified
human rights impacts, and to drive continuous improvement.
Business enterprises should make particular efforts to track the effectiveness of their
responses to impacts on individuals from groups or populations that may be at heightened
risk of vulnerability or marginalization.
Tracking should be integrated into relevant internal reporting processes. Business
enterprises might employ tools they already use in relation to other issues. This could
include performance contracts and reviews as well as surveys and audits, using gender-
disaggregated data where relevant. Operational-level grievance mechanisms can also
provide important feedback on the effectiveness of the business enterprise’s human rights
due diligence from those directly affected (see Principle 29).
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21. In order to account for how they address their human rights impacts, business
enterprises should be prepared to communicate this externally, particularly when
concerns are raised by or on behalf of affected stakeholders. Business enterprises
whose operations or operating contexts pose risks of severe human rights impacts
should report formally on how they address them. In all instances, communications
should:
(a) Be of a form and frequency that reflect an enterprise’s human rights
impacts and that are accessible to its intended audiences;
(b) Provide information that is sufficient to evaluate the adequacy of an
enterprise’s response to the particular human rights impact involved;
(c) In turn not pose risks to affected stakeholders, personnel or to legitimate
requirements of commercial confidentiality.
Commentary
The responsibility to respect human rights requires that business enterprises have in place
policies and processes through which they can both know and show that they respect
human rights in practice. Showing involves communication, providing a measure of
transparency and accountability to individuals or groups who may be impacted and to other
relevant stakeholders, including investors.
Communication can take a variety of forms, including in-person meetings, online
dialogues, consultation with affected stakeholders, and formal public reports. Formal
reporting is itself evolving, from traditional annual reports and corporate
responsibility/sustainability reports, to include on-line updates and integrated financial and
non-financial reports.
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Formal reporting by enterprises is expected where risks of severe human rights impacts
exist, whether this is due to the nature of the business operations or operating contexts. The
reporting should cover topics and indicators concerning how enterprises identify and
address adverse impacts on human rights. Independent verification of human rights
reporting can strengthen its content and credibility. Sector-specific indicators can provide
helpful additional detail.
Remediation
22. Where business enterprises identify that they have caused or contributed to adverse
impacts, they should provide for or cooperate in their remediation through legitimate
processes.
Commentary
Even with the best policies and practices, a business enterprise may cause or contribute to
an adverse human rights impact that it has not foreseen or been able to prevent.
Where a business enterprise identifies such a situation, whether through its human rights
due diligence process or other means, its responsibility to respect human rights requires
active engagement in remediation, by itself or in cooperation with other actors.
Operational-level grievance mechanisms for those potentially impacted by the business
enterprise’s activities can be one effective means of enabling remediation when they meet
certain core criteria, as set out in Principle 31.
Where adverse impacts have occurred that the business enterprise has not caused or
contributed to, but which are directly linked to its operations, products or services by a
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business relationship, the responsibility to respect human rights does not require that the
enterprise itself provide for remediation, though it may take a role in doing so.
Some situations, in particular where crimes are alleged, typically will require cooperation
with judicial mechanisms.
Further guidance on mechanisms through which remediation may be sought, including
where allegations of adverse human rights impacts are contested, is included in Chapter III
on access to remedy.
Issues of context
23. In all contexts, business enterprises should:
(a) Comply with all applicable laws and respect internationally recognized
human rights, wherever they operate;
(b) Seek ways to honour the principles of internationally recognized human
rights when faced with conflicting requirements;
(c) Treat the risk of causing or contributing to gross human rights abuses as
a legal compliance issue wherever they operate.
Commentary
Although particular country and local contexts may affect the human rights risks of an
enterprise’s activities and business relationships, all business enterprises have the same
responsibility to respect human rights wherever they operate. Where the domestic context
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renders it impossible to meet this responsibility fully, business enterprises are expected to
respect the principles of internationally recognized human rights to the greatest extent
possible in the circumstances, and to be able to demonstrate their efforts in this regard.
Some operating environments, such as conflict-affected areas, may increase the risks of
enterprises being complicit in gross human rights abuses committed by other actors
(security forces, for example). Business enterprises should treat this risk as a legal
compliance issue, given the expanding web of potential corporate legal liability arising
from extraterritorial civil claims, and from the incorporation of the provisions of the Rome
Statute of the International Criminal Court in jurisdictions that provide for corporate
criminal responsibility. In addition, corporate directors, officers and employees may be
subject to individual liability for acts that amount to gross human rights abuses.
In complex contexts such as these, business enterprises should ensure that they do not
exacerbate the situation. In assessing how best to respond, they will often be well advised
to draw on not only expertise and cross-functional consultation within the enterprise, but
also to consult externally with credible, independent experts, including from governments,
civil society, national human rights institutions and relevant multi-stakeholder initiatives.
24. Where it is necessary to prioritize actions to address actual and potential adverse
human rights impacts, business enterprises should first seek to prevent and mitigate
those that are most severe or where delayed response would make them irremediable.
Commentary
While business enterprises should address all their adverse human rights impacts, it may
not always be possible to address them simultaneously. In the absence of specific legal
guidance, if prioritization is necessary business enterprises should begin with those human
rights impacts that would be most severe, recognizing that a delayed response may affect
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remediability. Severity is not an absolute concept in this context, but is relative to the other
human rights impacts the business enterprise has identified.
III. Access to remedy
A. Foundational principle
25. As part of their duty to protect against business-related human rights abuse, States
must take appropriate steps to ensure, through judicial, administrative, legislative or
other appropriate means, that when such abuses occur within their territory and/or
jurisdiction those affected have access to effective remedy.
Commentary
Unless States take appropriate steps to investigate, punish and redress business-related
human rights abuses when they do occur, the State duty to protect can be rendered weak or
even meaningless.
Access to effective remedy has both procedural and substantive aspects. The remedies
provided by the grievance mechanisms discussed in this section may take a range of
substantive forms the aim of which, generally speaking, will be to counteract or make good
any human rights harms that have occurred. Remedy may include apologies, restitution,
rehabilitation, financial or non-financial compensation and punitive sanctions (whether
criminal or administrative, such as fines), as well as the prevention of harm through, for
example, injunctions or guarantees of non-repetition. Procedures for the provision of
remedy should be impartial, protected from corruption and free from political or other
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attempts to influence the outcome.
For the purpose of these Guiding Principles, a grievance is understood to be a perceived
injustice evoking an individual’s or a group’s sense of entitlement, which may be based on
law, contract, explicit or implicit promises, customary practice, or general notions of
fairness of aggrieved communities. The term grievance mechanism is used to indicate any
routinized, State-based or non-State-based, judicial or non-judicial process through which
grievances concerning business-related human rights abuse can be raised and remedy can
be sought.
State-based grievance mechanisms may be administered by a branch or agency of the State,
or by an independent body on a statutory or constitutional basis. They may be judicial or
non-judicial. In some mechanisms, those affected are directly involved in seeking remedy;
in others, an intermediary seeks remedy on their behalf. Examples include the courts (for
both criminal and civil actions), labour tribunals, National Human Rights Institutions,
National Contact Points under the Guidelines for Multinational Enterprises of the
Organization for Economic Cooperation and Development, many ombudsperson offices,
and Government-run complaints offices.
Ensuring access to remedy for business-related human rights abuses requires also that
States facilitate public awareness and understanding of these mechanisms, how they can be
accessed, and any support (financial or expert) for doing so.
State-based judicial and non-judicial grievance mechanisms should form the foundation of
a wider system of remedy. Within such a system, operational-level grievance mechanisms
can provide early-stage recourse and resolution. State-based and operational-level
mechanisms, in turn, can be supplemented or enhanced by the remedial functions of
collaborative initiatives as well as those of international and regional human rights
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mechanisms. Further guidance with regard to these mechanisms is provided in Guiding
Principles 26 to 31.
B. Operational principles
State-based judicial mechanisms
26. States should take appropriate steps to ensure the effectiveness of domestic judicial
mechanisms when addressing business-related human rights abuses, including
considering ways to reduce legal, practical and other relevant barriers that could lead
to a denial of access to remedy.
Commentary
Effective judicial mechanisms are at the core of ensuring access to remedy. Their ability to
address business-related human rights abuses depends on their impartiality, integrity and
ability to accord due process.
States should ensure that they do not erect barriers to prevent legitimate cases from being
brought before the courts in situations where judicial recourse is an essential part of
accessing remedy or alternative sources of effective remedy are unavailable. They should
also ensure that the provision of justice is not prevented by corruption of the judicial
process, that courts are independent of economic or political pressures from other State
agents and from business actors, and that the legitimate and peaceful activities of human
rights defenders are not obstructed.
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Legal barriers that can prevent legitimate cases involving business-related human rights
abuse from being addressed can arise where, for example:
• The way in which legal responsibility is attributed among members of a corporate
group under domestic criminal and civil laws facilitates the avoidance of appropriate
accountability;
• Where claimants face a denial of justice in a host State and cannot access home State
courts regardless of the merits of the claim;
• Where certain groups, such as indigenous peoples and migrants, are excluded from
the same level of legal protection of their human rights that applies to the wider
population.
Practical and procedural barriers to accessing judicial remedy can arise where, for example:
• The costs of bringing claims go beyond being an appropriate deterrent to
unmeritorious cases and/or cannot be reduced to reasonable levels through
government support, ‘market-based’ mechanisms (such as litigation insurance and
legal fee structures), or other means;
• Claimants experience difficulty in securing legal representation, due to a lack of
resources or of other incentives for lawyers to advise claimants in this area;
• There are inadequate options for aggregating claims or enabling representative
proceedings (such as class actions and other collective action procedures), and this
prevents effective remedy for individual claimants;
• State prosecutors lack adequate resources, expertise and support to meet the State’s
own obligations to investigate individual and business involvement in human rights-
related crimes.
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Many of these barriers are the result of, or compounded by, the frequent imbalances
between the parties to business-related human rights claims, such as in their financial
resources, access to information and expertise. Moreover, whether through active
discrimination or as the unintended consequences of the way judicial mechanisms are
designed and operate, individuals from groups or populations at heightened risk of
vulnerability or marginalization often face additional cultural, social, physical and financial
impediments to accessing, using and benefiting from these mechanisms. Particular attention
should be given to the rights and specific needs of such groups or populations at each stage
of the remedial process: access, procedures and outcome.
State-based non-judicial grievance mechanisms
27. States should provide effective and appropriate non-judicial grievance mechanisms,
alongside judicial mechanisms, as part of a comprehensive State-based system for the
remedy of business-related human rights abuse.
Commentary
Administrative, legislative and other non-judicial mechanisms play an essential role in
complementing and supplementing judicial mechanisms. Even where judicial systems are
effective and well-resourced, they cannot carry the burden of addressing all alleged abuses;
judicial remedy is not always required; nor is it always the favoured approach for all
claimants.
Gaps in the provision of remedy for business-related human rights abuses could be filled,
where appropriate, by expanding the mandates of existing non-judicial mechanisms and/or
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by adding new mechanisms. These may be mediation-based, adjudicative or follow other
culturally-appropriate and rights-compatible processes – or involve some combination of
these – depending on the issues concerned, any public interest involved, and the potential
needs of the parties. To ensure their effectiveness, they should meet the criteria set out in
Principle 31.
National human rights institutions have a particularly important role to play in this regard.
As with judicial mechanisms, States should consider ways to address any imbalances
between the parties to business-related human rights claims and any additional barriers to
access faced by individuals from groups or populations at heightened risk of vulnerability
or marginalization.
Non-State-based grievance mechanisms
28. States should consider ways to facilitate access to effective non-State-based grievance
mechanisms dealing with business-related human rights harms.
Commentary
One category of non-State-based grievance mechanisms encompasses those administered
by a business enterprise alone or with stakeholders, by an industry association or a multi-
stakeholder group. They are non-judicial, but may use adjudicative, dialogue-based or
other culturally appropriate and rights-compatible processes. These mechanisms may offer
particular benefits such as speed of access and remediation, reduced costs and/or
transnational reach.
Another category comprises regional and international human rights bodies. These have
dealt most often with alleged violations by States of their obligations to respect human
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rights. However, some have also dealt with the failure of a State to meet its duty to protect
against human rights abuse by business enterprises.
States can play a helpful role in raising awareness of, or otherwise facilitating access to,
such options, alongside the mechanisms provided by States themselves.
29. To make it possible for grievances to be addressed early and remediated directly,
business enterprises should establish or participate in effective operational-level
grievance mechanisms for individuals and communities who may be adversely
impacted.
Commentary
Operational-level grievance mechanisms are accessible directly to individuals and
communities who may be adversely impacted by a business enterprise. They are typically
administered by enterprises, alone or in collaboration with others, including relevant
stakeholders. They may also be provided through recourse to a mutually acceptable external
expert or body. They do not require that those bringing a complaint first access other
means of recourse. They can engage the business enterprise directly in assessing the issues
and seeking remediation of any harm.
Operational-level grievance mechanisms perform two key functions regarding the
responsibility of business enterprises to respect human rights.
• First, they support the identification of adverse human rights impacts as a part of an
enterprise’s on-going human rights due diligence. They do so by providing a channel
for those directly impacted by the enterprise’s operations to raise concerns when
they believe they are being or will be adversely impacted. By analyzing trends and
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patterns in complaints, business enterprises can also identify systemic problems and
adapt their practices accordingly
• Second, these mechanisms make it possible for grievances, once identified, to be
addressed and for adverse impacts to be remediated early and directly by the
business enterprise, thereby preventing harms from compounding and grievances
from escalating.
Such mechanisms need not require that a complaint or grievance amount to an alleged
human rights abuse before it can be raised, but specifically aim to identify any legitimate
concerns of those who may be adversely impacted. If those concerns are not identified and
addressed, they may over time escalate into more major disputes and human rights abuses.
Operational-level grievance mechanisms should reflect certain criteria to ensure their
effectiveness in practice (Principle 31). These criteria can be met through many different
forms of grievance mechanism according to the demands of scale, resource, sector, culture
and other parameters.
Operational-level grievance mechanisms can be important complements to wider
stakeholder engagement and collective bargaining processes, but cannot substitute for
either. They should not be used to undermine the role of legitimate trade unions in
addressing labour-related disputes, nor to preclude access to judicial or other non-judicial
grievance mechanisms.
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30. Industry, multi-stakeholder and other collaborative initiatives that are based on
respect for human rights-related standards should ensure that effective grievance
mechanisms are available.
Commentary
Human rights-related standards are increasingly reflected in commitments undertaken by
industry bodies, multi-stakeholder and other collaborative initiatives, through codes of
conduct, performance standards, global framework agreements between trade unions and
transnational corporations, and similar undertakings.
Such collaborative initiatives should ensure the availability of effective mechanisms
through which affected parties or their legitimate representatives can raise concerns when
they believe the commitments in question have not been met. The legitimacy of such
initiatives may be put at risk if they do not provide for such mechanisms. The mechanisms
could be at the level of individual members, of the collaborative initiative, or both. These
mechanisms should provide for accountability and help enable the remediation of adverse
human rights impacts.
Effectiveness criteria for non-judicial grievance mechanisms
31. In order to ensure their effectiveness, non-judicial grievance mechanisms, both State-
based and non-State-based, should be:
(a) Legitimate: enabling trust from the stakeholder groups for whose use
they are intended, and being accountable for the fair conduct of grievance processes;
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(b) Accessible: being known to all stakeholder groups for whose use they are
intended, and providing adequate assistance for those who may face particular
barriers to access;
(c) Predictable: providing a clear and known procedure with an indicative
timeframe for each stage, and clarity on the types of process and outcome available
and means of monitoring implementation;
(d) Equitable: seeking to ensure that aggrieved parties have reasonable
access to sources of information, advice and expertise necessary to engage in a
grievance process on fair, informed and respectful terms;
(e) Transparent: keeping parties to a grievance informed about its progress,
and providing sufficient information about the mechanism’s performance to build
confidence in its effectiveness and meet any public interest at stake;
(f) Rights-compatible: ensuring that outcomes and remedies accord with
internationally recognized human rights;
(g) A source of continuous learning: drawing on relevant measures to
identify lessons for improving the mechanism and preventing future grievances and
harms;
Operational-level mechanisms should also be:
(h) Based on engagement and dialogue: consulting the stakeholder groups
for whose use they are intended on their design and performance, and focusing on
dialogue as the means to address and resolve grievances.
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A/HRC/17/31
Commentary
A grievance mechanism can only serve its purpose if the people it is intended to serve know
about it, trust it and are able to use it. These criteria provide a benchmark for designing,
revising or assessing a non-judicial grievance mechanism to help ensure that it is effective
in practice. Poorly designed or implemented grievance mechanisms can risk compounding
a sense of grievance amongst affected stakeholders by heightening their sense of
disempowerment and disrespect by the process.
The first seven criteria apply to any State-based or non-State-based, adjudicative or
dialogue-based mechanism. The eighth criterion is specific to operational-level mechanisms
that business enterprises help administer.
The term “grievance mechanism” is used here as a term of art. The term itself may not
always be appropriate or helpful when applied to a specific mechanism, but the criteria for
effectiveness remain the same. Commentary on the specific criteria follows:
(a) Stakeholders for whose use a mechanism is intended must trust it if they are
to choose to use it. Accountability for ensuring that the parties to a grievance process
cannot interfere with its fair conduct is typically one important factor in building
stakeholder trust;
(b) Barriers to access may include a lack of awareness of the mechanism,
language, literacy, costs, physical location and fears of reprisal;
(c) In order for a mechanism to be trusted and used, it should provide public
information about the procedure it offers. Timeframes for each stage should be respected
wherever possible, while allowing that flexibility may sometimes be needed;
(d) In grievances or disputes between business enterprises and affected
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stakeholders, the latter frequently have much less access to information and expert
resources, and often lack the financial resources to pay for them. Where this imbalance is
not redressed, it can reduce both the achievement and perception of a fair process and make
it harder to arrive at durable solutions;
(e) Communicating regularly with parties about the progress of individual
grievances can be essential to retaining confidence in the process. Providing transparency
about the mechanism’s performance to wider stakeholders, through statistics, case studies
or more detailed information about the handling of certain cases, can be important to
demonstrate its legitimacy and retain broad trust. At the same time, confidentiality of the
dialogue between parties and of individuals’ identities should be provided where necessary;
(f) Grievances are frequently not framed in terms of human rights and many do
not initially raise human rights concerns. Regardless, where outcomes have implications
for human rights, care should be taken to ensure that they are in line with internationally
recognized human rights;
(g) Regular analysis of the frequency, patterns and causes of grievances can
enable the institution administering the mechanism to identify and influence policies,
procedures or practices that should be altered to prevent future harm;
(h) For an operational-level grievance mechanism, engaging with affected
stakeholder groups about its design and performance can help to ensure that it meets their
needs, that they will use it in practice, and that there is a shared interest in ensuring its
success. Since a business enterprise cannot, with legitimacy, both be the subject of
complaints and unilaterally determine their outcome, these mechanisms should focus on
reaching agreed solutions through dialogue. Where adjudication is needed, this should be
provided by a legitimate, independent third-party mechanism.
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